The CDC Opens Things Up!

On May 13, the CDC issued a new guidance regarding the COVID-19 precautions that fully vaccinated persons in non-healthcare settings may now follow.
The CDC stated that fully vaccinated people in non-healthcare settings can:

  • Resume activities in any setting without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance
  • Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel
  • Refrain from testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States
  • Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings, such as if experiencing symptoms or testing positive within the preceding 10 days.
  • Refrain from quarantine following a known exposure if asymptomatic
  • Refrain from routine screening testing if feasible
  • For now, fully vaccinated people should continue to:
    • Get tested if experiencing COVID-19 symptoms
    • Follow CDC and health department travel requirements and recommendations
    • Not visit public or private settings if they have tested positive in the prior 10 days or are experiencing symptoms

You can read the full CDC recommendation here: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

As you may recall, late last month our Governor lifted our statewide mask mandate and required that masks be worn on public transit, in state government buildings, schools, and healthcare facilities. Significantly, the Governor stated that “Mask policies in Louisiana will be set by local leaders and business owners.” This, coupled with the CDC’s guidance that masks must be worn if required by “local business and workplace guidance” would seem to indicate that the CDC and Louisiana still require masks if business owners or employers require them.  This probably means that employers should revise their own written policies if they are going to remove the mask mandate. 

Many employers are asking how these new guidances will impact the application of Louisiana’s Limitation of Liability for COVID-19 (LSA-RS 9:2800.25). This statute generally provides that if a person or entity substantially complies with applicable COVID-19 procedures established by applicable federal, state or local agencies, it will not be liable for damages due to exposure to COVID-19 in the operation of its business.

Governor Edward’s April guidance specifically states that “Lifting of the mask mandate does not affect the COVID-19 liability protections that were enacted by the Louisiana Legislature which require businesses and schools to follow the recommendations of state and federal health authorities, all of which recommend continued mask-wearing.”

To confuse the issue further, we can’t forget OSHA. OSHA still has guidance on its website stating that employers should not make distinctions between fully vaccinated employees and those who are not.

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because, at this time, there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

OSHA’s position is a bit dated and in conflict with the CDC’s guidance, but it is still there, at least for now.

So, even though it appears as if our Governor and the CDC have significantly eased their mask requirements, we urge businesses to slow down and exercise caution. It is very likely that state and federal guidance will evolve quickly over the next few weeks, providing employers with some clarity on this issue.

If You Are a Fan of Paid Leave, This Is the Year for You

In his recent address to Congress, President Biden touted two plans that would require employers to provide employees with paid leave.  Here are the highlights:

American Families Plan

You can read the entire Plan summary here. https://www.constangy.com/assets/htmldocuments/American%20Families%20Plan.pdf The section addressing the paid leave provisions can be found on pages 8 and 9.

If the plan passes, when it is fully phased in employees would be entitled to take up to 12 weeks of paid leave per year for several reasons:

  • The employee’s own illness
  • The illness of a family member
  • A new child
  • Military deployment of a family member
  • Treatment for or recovery from sexual assault, stalking, or domestic violence
  • Bereavement

Sounds a lot like paid FMLA leave to me.  We do not yet know how the AFP will impact the FMLA. 

The Plan is not clear about how much an employee would be paid. Right now, it appears as if employees would receive between 66% and 80% of their average weekly wages, with a maximum of $4,000 per month.

This Plan is likely to cost in excess of $500 Billion over 10 years.

This Plan will almost certainly pass if the Democrats are able to introduce it using the budget reconciliation process, which only requires a simple majority to pass the Senate. If they cannot use the budget reconciliation process, it is not as likely to pass in its current form.

Healthy Families Act

The HFA would require employers with 15 or more employees to provide employees with seven days of paid sick leave per year for specific reasons:

  • Physical or mental illness, injury, or medical condition
  • Obtaining a diagnosis, care, or preventive care
  • Attendance at required meetings at a school which the employee’s child is attending because of a medical condition or disability
  • Obtaining various types of assistance related to sexual assault, stalking, or domestic violence

You can read the entire 48 page Bill here: https://delauro.house.gov/sites/delauro.house.gov/files/documents/HFA%20117.pdf

Employer take away: Neither the American Families Plan nor the Healthy Families Act are yet law, so you do not have to take any immediate action. But, keep an eye out for further updates as they each make their way through the legislative process.  If either of them pass in any form, it will require us to quickly revise our forms and practices.

Three for One Friday!

Congratulation! For today only I am having a special three for one deal. For the low low price of nothing, you get three of my hot-off-the press updates.

1.EEO-1 Reports are due by July 19, 2021.

This is more of a reminder. If you are an employer who is required to file an EEO-1 Component 1 report for 2019 or 2020, you must file both reports with the EEOC by July 19, 2021. Don’t wait too long or forget to file for 2019 if you are required to do so.

2.The EEOC has filed suit against Walmart in Chicago for failing to provide a hearing-impaired applicant with an American Sign Language (ASL) interpreter.

This is one of a series of lawsuits that the EEOC has filed against large employers, including McDonald’s, as part of its ongoing Strategic Enforcement Plan aimed at eliminating barriers to hiring disabled applicants. The key here is to know what your obligations are to accommodate disabled persons in the application and hiring process and to make sure that everyone involved in the process knows what to do and say. It only takes one untrained assistant to tell a hearing-impaired applicant that you don’t provide ASL interpreters to trigger a lawsuit.

I am currently handling several suits of this type filed by advocacy groups who send in “testers” posing as disabled applicants. They claim to be hearing impaired and ask if you will provide an ASL interpreter to translate as they go through the application process.  If you say anything other than “yes” they file suit.  Be aware, be prepared, and train your people on how to handle these situations.

3.President Biden Raises Minimum Wage to $15 for Federal Contractors.

On April 27, 2021, President Biden signed an Executive Order requiring all Federal Contractors and Subcontractors to pay workers on covered contracts a minimum of $15 an hour starting January 30, 2022. This is an increase from the current $10.95 minimum wage for Federal Contractors. The Order requires the Secretary of Labor to issue regulations implementing this EO by November 24, 2021.

If you are a Federal Contractor or Subcontractor, you should review your service contracts and subcontracts to ensure that they include a clause authorizing price increases resulting from direct labor costs caused by the increased minimum wage. These types of clauses usually allow for the recovery of accompanying increases in social security, unemployment taxes and workers’ compensation insurance costs, but they do not allow price increases to recover increased general and administrative costs, overhead, or profit.

My Employees Have Been Jabbed Twice, Now What?

I have been getting a lot of questions about the CDC’s stance on mask use after being fully vaccinated, and whether or not employers should continue to require employees who have been fully vaccinated to wear masks. The short answer is: It depends. Below is an excerpt from FAQs published by the CDC last Tuesday the 13th that will shed some light on this issue.

Do I need to wear a mask and avoid close contact with others if I have gotten 2 doses of the vaccine?

It depends. For now, fully vaccinated people can gather indoors without physical distancing or wearing masks with:

  • Other people who are fully vaccinated
  • Unvaccinated people from one other household, unless any of those people or anyone they live with has an increased risk for severe illness from COVID-19.

Until more is known, fully vaccinated people should continue to wear masks and stay 6 feet apart from other people in other settings, like when they are in public or visiting with unvaccinated people from multiple households.

This should get you to the CDC’s COVID-19 FAQ page. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html

Keep in mind LSA-R.S. 9:2800.25 when deciding if you are going to continue to require your employees to wear masks. You haven’t memorized LSA-R.S. 9:2800.25? Here are the relevant parts:

  1. No natural or juridical person, state or local government, or political subdivision thereof shall be liable for any civil damages for injury or death resulting from or related to actual or alleged exposure to COVID-19 in the course of or through the performance or provision of the person’s, government’s, or political subdivision’s business operations unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency which governs the business operations and the injury or death was caused by the person’s, government’s, or political subdivision’s gross negligence or wanton or reckless misconduct. If two or more sources of procedures are applicable to the business operations at the time of the actual or alleged exposure, the person, government, or political subdivision shall substantially comply with any one applicable set of procedures.
  2. An employee whose contraction of COVID-19 is determined to be compensable under the Louisiana Workers’ Compensation Law shall have no remedy based in tort for such exposure against his employer, joint employer, borrowed employer, statutory employer, any other person or entity listed in R.S. 23:1032(A)(1)(b), and any other person or entity potentially liable pursuant to the Louisiana Workers’ Compensation Law unless the exposure was intentional as provided by R.S. 23:1032(B).

This is a link to the Act. https://legis.la.gov/Legis/Law.aspx?d=1187405

I strongly encourage you to check the CDC web site daily and to follow its latest guidance and recommendations.

Get Ready to Submit Your EEO-1 Component 1 Data to the EEOC

On March 29, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that qualifying employers will be required to file 2019 and 2020 workplace diversity data, (aka EEO-1 Component 1) between April 26, 2021 and July 19, 2021. Qualifying employers, generally those with at least 100 employees and federal contractors with 50 or more employees, should begin to prepare their filings.

You may recall that in May of 2020 the EEOC announced the delay of the 2019 EEO-1 Component 1 data collection in light of the COVID-19 public health emergency. Consequently, EEO-1 filers will have to submit data for both 2019 and 2020 in this year’s data collection. The EEOC has indicated that more information and resources regarding updates on the data collection will be available on a new dedicated website and that they will provide a Filer Support Team to respond to inquiries. You can vising this site for additional information: https://eeocdata.org/

The CDC Says that Fully Vaccinated Workers Do Not Need to Wear Masks – Sort Of

The CDC Says that Fully Vaccinated Workers Do Not Need to Wear Masks – Sort OfIn an effort to motivate more Americans to take one of the COVID-19 vaccines, the CDC issued new Guidance yesterday that slightly loosens the restrictions on those of us who have been fully vaccinated. If you have been fully vaccinated (meaning that you have received both shots, if applicable), the CDC now says that:

Continue reading “The CDC Says that Fully Vaccinated Workers Do Not Need to Wear Masks – Sort Of”

Keep an Eye on These Bills If You Use or Are Considering Using a Mandatory Arbitration Provision

As you know, several pieces of federal legislation aimed at limiting or eliminating altogether mandatory arbitration in the employment setting have been proposed, and failed in the past several years. In fact, several states: California, New Jersey and New York, have all passed state laws prohibiting mandatory arbitration of employment disputes. The Biden administration is going to make another run at passing this legislation at the federal level, and employers should stay abreast of  the progress of these Bills.

Two of the more comprehensive and high-profile Bills filed to date are the FAIR Act and the PRO Act.

Forced Arbitration Injustice Repeal (FAIR) Act (H.R. 963).

The FAIR Act was reintroduced in February of this year. In 2019 the Bill passed the Congress but failed to clear the Senate. The current FAIR Act has 155 cosponsors in the House. If it passes, the FAIR Act will preclude mandatory arbitration agreements for disputes involving, among other things, civil rights and employment. It will also prohibit all class and collective action waivers. You may recall that I have suggested in past updates that class and collection action waivers were two of the most beneficial aspects of mandatory employment arbitration agreements.

Protecting the Right to Organize Act (PRO Act) (H.R. 842). 

The PRO Act was also introduced in the Congress in February of this year. The PRO Act is even more pro-union and pro-employee than the FAIR Act. For example, the PRO Act would legislatively overturn the Supreme Court’s decision in Epic Systems and would make it an unfair labor practice for any employer to use class action waivers.

The PRO Act is expected to be opposed by virtually all Republicans; accordingly, its passage hinges on certain Democratic senators and whether the Senate retains the filibuster. In contrast, the FAIR Act is likely to receive some bipartisan support. Not only did the prior version of the FAIR Act receive some bipartisan support in the House, but some Republican senators may also support the bill-or at least a watered down version of it. For example, Senator Lindsay Graham (R-SC) has supported limiting mandatory arbitration agreements under the right circumstances. As drafted, the FAIR Act is unlikely to garner sufficient votes in the Senate to overcome a filibuster, but a compromise bill might.

Takeaways Ongoing state and federal activity demonstrates a concerted effort to limit the use of arbitration agreements and class waivers in the employment context. Unlike in recent years, the composition of Congress is more likely to allow for the passage of such Bills.  As such, employers with arbitration programs, and those contemplating implementing such programs, should continue to monitor events in Washington.

U.S. Dept. of Labor Expands Unemployment Insurance Eligibility

On February 25th, the U.S. Department of Labor issued a Guidance to state unemployment insurance agencies expanding the circumstances in which workers may be eligible for Pandemic Unemployment Assistance (PUA).

The new Guidance expands eligibility to three categories of workers:

  • Workers receiving unemployment benefits who had their continued regular unemployment benefits’ claims denied after they refused to work or accept an offer of work at a worksite not in compliance with coronavirus health and safety standards.
  • Workers laid off, or who have had their work hours reduced as a direct result of the pandemic.
  • School employees working without a contract or reasonable assurance of continued employment who face reduced paychecks and no assurance of continued pay when schools are closed due to coronavirus.

The new reasons are retroactive and will apply as if they had been included from the beginning of the PUA program. Individuals must self-certify that they are unemployed, or unable or unavailable to work because of identified coronavirus-related reasons during the applicable time period.

These new categories of eligibility will obviously create a good deal more work for the already overloaded state unemployment agencies. The DOL has indicated that it will provide state systems with funds to make necessary changes and time to update their systems to enable retroactive payment of PUA to eligible claimants. PUA is 100 percent federally funded, and administered by state agencies on behalf of the department’s Employment and Training Administration. This should be a great comfort to those of you who have been keeping up with the historic levels of fraud related to this program. (Scammers have taken $36 BILLION in fraudulent unemployment payments from American workers https://www.cnbc.com/2021/01/05/scammers-have-taken-36-billion-in-fraudulent-unemployment-payments-.html)

Please, Please, Please Use Common Sense When Responding to an Employee’s Request for a Reasonable Accommodation

This case is a good example of just how expensive it can be when we don’t. The Plaintiff in this case, Mr. Burnette, worked in a call center for Ocean Properties. The call center was located in the clubhouse of a golf club. (Sounds a little sketchy right off the bat.)  The public entrance to the club house, which Mr. Burnett had to use, had two heavy, wooden doors that pulled outward and then automatically closed. The area leading to the doors had a slight, downward slope away from the doors. Mr. Burnette was a paraplegic who used a wheelchair, and he had a very difficult time opening the doors by himself without rolling down the slope. In fact, after complaining several times and asking Ocean Properties to install push-button automatic doors, Mr. Burnette injured his wrist while trying to get through the doors by himself.

Rather than install the automatic doors, which would have cost around two thousand dollars, Ocean Properties merely confirmed that the doors were ADA-compliant when the clubhouse was built. However, at no time did Ocean Properties respond to any of Mr. Burnette’s requests for an accommodation or do anything to determine how it could help him more easily access the building. (At trial, Mr. Burnette testified that he was “tired, frustrated, [and] angry” that he never heard a response to his request and that he believed the defendants did not wish to accommodate him.)

Understandably, Mr. Burnette sued his employer on the grounds that Ocean Properties had unreasonably failed to accommodate his open and apparent disability. At trial Ocean Properties argued that since Mr. Burnette was excelling at his job despite his difficulties in entering the premises, he did not actually need a reasonable accommodation.  Alternately, Ocean Properties argued that his request for automatic doors was not reasonable in any case.

The jury and Court of Appeals disagreed with both of Ocean Properties’ contentions “The fact that Burnett was able to enter the clubhouse (at the risk of bodily injury) despite this difficulty and to perform the duties of an associate once inside does not necessarily mean he did not require an accommodation or that his requested accommodation was unreasonable, as Appellants claim.”  and held that Ocean Properties had indeed failed to reasonably accommodate Mr. Burnette.  The jury awarded Mr. Burnette $150,000 in compensatory damages.

The jury also awarded Mr. Burnette $500,000 in punitive damages. The Court of Appeals affirmed the award of punitive damages, focusing on the fact that not only did Ocean Properties refuse to reasonably accommodate Mr. Burnette, but it also failed to respond to any of his numerous pleas for help. Had Ocean Properties simply exercised common sense and engaged in a dialogue with Mr. Burnette, it may well have avoided this punitive damage award even if it lost the underlying failure to accommodate claim.

In addition to compensatory and punitive damages, Ocean Properties was ordered to pay Mr. Burnette’s legal fees.  When you include its own legal fees with the damages and legal fees awarded to Mr. Burnette, Ocean Properties easily spent well over one million dollars on this case, as opposed to the two thousand dollars that the automatic doors would have cost. (Actually, Ocean Properties could have installed approximately 500 sets of automatic doors for what this case cost it in monetary losses alone.)

Ocean Properties clearly made mistakes at several junctures: it failed to follow up with an employees’ repeated requests for an accommodation; it failed to make what would appear to be a very reasonable accommodation; and it failed to exercise even a modicum of common sense in its dealings with Mr. Burnette. When addressing an employee’s request for an accommodation, it is critical that we use our common sense, step back, and see the situation as an objective third-party would see it. Even if we don’t prevail on the underlying claim, we may still avoid a very expensive punitive damage judgment.

Be Very Careful If You Discuss Wages and High-Level Hiring With Competitors, or You Might End Up in Jail

In 2016 the U.S. Department of Justice and the U.S. Federal Trade Commission released with little fanfare the Antitrust Guidance for Human Resource Professionals (Antitrust Guidance). Generally, the Guidance warned human resource professionals that agreements between competitors to set wages or to refrain from soliciting each other’s employees (“no-poach agreements”) could result in criminal prosecution under U.S. antitrust laws. Although the DOJ has pursued a number of civil cases since then, it did not obtain its first criminal indictment until December of 2020.

Wage Setting: In United States v. Neeraj Jindal, (E.D. Tex. Dec. 09, 2020) the U.S charged Neeraj Jindal, the former owner of a physical therapist staffing company, with violating the Sherman Act by conspiring with a competing physical therapist staffing company to fix wages for physical therapists and physical therapist assistants in the Dallas-Fort Worth metropolitan area. The DOJ specifically alleged that over a six-month period from March to August 2017, Jindal exchanged nonpublic information with his co-conspirators about the rates paid to physical therapists. The DOJ claimed that Jindal and his co-conspirators communicated about rate decreases, discussed and agreed to decrease rates paid to physical therapists, implemented rate decreases in accordance with the agreement reached, and paid physical therapists at collusive and noncompetitive rates. The DOJ produced numerous text messages between Jindal and his co-conspirators concerning the alleged conspiracy. (As I have said before, if you don’t want it read or seen in court, then don’t take a picture of it, text it or send it in an email.)

Non-Solicitation Agreements: In January of this year, the DOJ filed criminal indictment against Surgical Care Affiliates, LLC alleging that SCA, which owns and operates outpatient medical care centers across the country, entered into two separate bilateral conspiracies with other health care companies not to solicit senior-level employees, thereby suppressing competition for the services of those employees.

The DOJ alleges that beginning as early as May 2010 SCA and another company conspired to suppress competition between them by agreeing not to solicit each other’s senior-level employees. The DOJ also alleged that SCA conspired with another company to allocate senior-level employees through a similar nonsolicitation agreement. The DOJ claimed that SCA enforced its no-poach agreements by instructing recruiters not to recruit senior-level employees from the other two companies, by requiring senior-level employee applicants to notify their bosses when they were seeking other employment, by monitoring compliance with the no-poach agreements, and by refraining from soliciting each other’s senior-level employees. The DOJ has again provided emails between SCA and the other two companies admitting the existence of the agreements.

Take away: Employers, Executives and HR professionals, should be very careful when they communicate with their competitors regarding non-public information regarding wages and any sort of agreements not to attempt to hire away each other’s employees. While prosecution is far from common, we can count on the new administration to be much more aggressive in seeking criminal indictments for these types of activities.